Teaching Tips to Think about Early in the New Semester- By Steven Friedland

With the beginning of a new semester upon us, these thoughts and tips are a great thing to keep in the back of everyone’s mind whether you are a student or a professor.  This great post was done by Steven Friedland.

Flexibility and Mobility in Law School Learning

As a professor who has been teaching for more than two decades, it is easy to feel like a dinosaur in classes populated by students mostly in their 20s.  But within that notion lies the fact that not only do ages change, but cultures as well.  It is evident that within the born-digital generation, cultural understandings, particularly involving learning, are different than mine.

While I think cross-cultural competency is more important than ever in this global era, it also applies to us teaching dinosaurs.  I learned in law school in a linear and fixed fashion – go to class, take notes, go to the library, study and prepare for the next class.  Based on studies and my own anecdotal evidence, there is an increasing preference for mobility and flexibility in learning.  I am becoming a believer in both — using Web platforms like TWEN, Blackboard or Moodle as integral parts of a course, and allowing students to have flexibility in where and when they learn.

I am now experimenting in doctrinal courses to include several flex classes — audiotaped, with an option to take each over a 24 hour period in a self-paced fashion.  These self-paced classes are combined with deliverables — writing an answer to a problem based on the class material and then posting it on the Web platform, or doing some other relevant task based on the material to ensure that some form of learning has occurred.  So far, these classes have been well-received; to my surprise, students like the flexibility about when they take class as much as the remote opportunity. I am enjoying shaking it up in this way.  What is the saying?  Even an old dinosaur can learn….


Note-Taking Breaks

In a law school class, there are a variety of note-takers.  Some are the “court reporters,” taking down every word.  Some take far fewer notes, within their own organizational schemes. Many students are using computers, with note-taking programs. I also have had some “deep observers,” who appear to take no notes at all.

But all students seem to rely on the notes they take in putting a course together for deep understanding, especially in the first year of school.  Interestingly, teachers do not generally know how students are taking notes and whether those notes taken are even accurate.  This is why I have started using a colleague’s technique (yes, I like borrowing good ideas from others, no hiding there), of taking “note breaks” in the middle of a doctrinal class — allowing students to check their notes with other students, particularly about important rules, principles or insights. I usually prompt the break by asking, “What were the most important points in class so far?”  This has several effects.  Everyone perks up and the students appear present and engaged.  Students also are more likely to ask questions about what has occurred thus far.  I get useful feedback on what I have communicated well and what I have done poorly.  So all the way around, I find it to be a helpful technique. When students walk out of class, they should be able to rely on and have ready access to useful notes.


Retention and Retrieval

Lots of studies have been done that show experts learn differently than novices.  In any educational process, the goal is to move up the scale, from unconscious incompetence, to conscious incompetence, to conscious competence, to the highest level, unconscious competence.  I know about the lowest level, having been there in law school and many other contexts (just thinking back on the longest years of my life taking piano lessons).  The highest level of competence is epitomized by Captain Sully, the U.S. Air pilot who landed his commercial plane without engines in the Hudson River.

So what learning features are associated with experts? Experts recognize patterns of information, have deep understanding of material within a domain, organize their information well for ready access, and constantly self-monitor.  We can learn from these characteristics in law school.  It is traditional for law school professors to evaluate student performance through a single final examination, (although sometimes mid-terms are also offered).  The traditional summative evaluation framework promotes a particular type of studying.  Students study like crazy just before an exam, and then dump all of their knowledge on the test. (This approach was a familiar one for me when I was in school.) To help students progress from novice to expert, though, we should teach for long-term retention and retrieval.  This can occur through the use of numerous problems and opportunities throughout a course by which to practice organizing and storing material before a final exam, the use of structures or outlines by which to approach topics, and a greater emphasis on mnemonics, anchor words and other learning devices.   Sometimes, in our desire to cover great swaths of material, we don’t drill as deeply as we could or should.

Ten Questions to Ask Yourself Before Volunteering

As a follow-up to my previous post on “-crastination”, Creativity and the Importance of Downtime, I’m sharing a copy of my favorite handout for helping all of us, students and faculty alike, learn to engage in discernment around saying no, and yes.

Ask yourself these questions

Before volunteering your time, skills & energy to ANYTHING!

  • Is there a chance I will find myself changed by this work?
  • Does this work express my values, the things I say are important to me?
  • Will this put me with people I want to know better?
  • Will doing this help me know myself better?
  • Do I enjoy thinking of myself as a person who would do this?
  • Do I have a special gift to share?
  • When I look back in a year or ten years, will I remember doing this?
  • Will this make me feel more connected or more disjointed?
  • What will I need to say NO to in order to say YES to this?
  • Will it be FUN!


Thanks for Maylin Harndon for sharing her version of this with me.




Formative Assessments – Valuable Educational Tool, Not as Hard (or Time-Intensive) as Some Think

New ABA Standard 314 requires laws schools to use “formative assessments” a fancy phrase for a simple concept: giving students feedback on how they are progressing in a course. Anyone who has seen the data knows that formative assessment helps student learning. Most schools of higher education have used formative assessments for years. Law teaching is a latecomer to this process.

As an Associate Dean of Academic Affairs, I have the role in our school of helping to promote formative assessment in our classes. I have used formative assessment for several years. However, I wanted to develop a method that was effective but not overly time-consuming.   I think that most law professors, if they care about their students, will try out a method if it does not overload them.

I pondered the area of civil procedure that I find consistently less impressive results on final exams than I would expect.   The area of removal came to mind. The requirements for removal are spelled out in the removal statutes. Yet the requirements are many—and picky too.   If the defendant removing a case does not cross her “t’s” and dot her “I’s,” she faces remand for a seemingly minor omission.

So, here was the exercise. I wrote a letter to the students, as a client from a state other than the one in which they were lawyers. I told the “lawyers” that I was a nonresident and wanted to know whether my case could be taken from state court where it was filed to federal court. I also said that I liked to know each step in the process and so wanted them to explain those steps and all deadlines.

Students received this letter the day we finished removal and had a week to prepare a response letter. I developed a checklist of the removal requirements and had my Teaching Assistant (TA) take a first run through, checking the steps that had been accurately described and putting an X next to those that were not described. The form ended with two categories: “This case is vulnerable to a motion to remand [with a blank after that] and “This case is safe from a motion to remand [again, with a blank line after].”

I then checked the TA’s marks against each letter—a process that took about an hour and a half for almost 70 students.   More than half missed something in the removal requirements such that I could mark the box that said the case was vulnerable to remand. The most teling point for most students was my marking the box that showed their case was vulnerable to a remand because they had not read the statute carefully and followed through diligently.

This feedback seemed to help. Many students made appointments to revisit removal and see how they had missed a requirement. The final exam results showed the strongest command of removal I have seen in 13 years of teaching this subject.

I already knew that providing feedback to students helped learning. What I had not established before is that the formative assessment can be done effectively without a great deal of time and effort. Using a TA helped with that, sure. Her work helped me to go more quickly through the letters and spot omissions.

I will now offer this formative assessment as an example for my colleagues. I’ll encourage my colleagues to consider ways in which they can develop similar ways to provide students feedback. The adoption of Standard 314 mandates such teaching, but the truth is law school ought to have been doing this already.   Now, I can advocate for providing students feedback and credibly say it does not have to take excessive time. Not wanting to use the “you’d better comply with Standard 314” card, I hope that the example will encourage professors to explore formative assessment. Once they see the benefits, my hope is that the benefits of the process will sell itself. Of course, for the recalcitrant, there’s always the reminder of an ABA site visit.

Touro’s Law Center’s Journal of Experiential Learning

The second issue of Touro Law Center’s Journal of Experiential Learning is now available online at http://www.tourolaw.edu/jel/?pageid=997.

This issue is devoted to incubator and residency programs and their contribution to legal education, particularly to the post-JD part of the educational continuum.  The creator of the law school incubator movement, Fred Rooney,  served as the guest editor for this edition.  Articles for the Incubator & Residency issue include:

Volume I, Number 2, Fall 2015
Table of Contents:



For professors assigning group work for credit, there is a website that can help allocate the share of credit to be given to each person. It’s called Spliddit (spliddit.org), and was developed by a Carnegie Mellon computer scientist. The idea is not ‘about doing the calculations for you, it’s about using a fair method that you probably wouldn’t have thought about yourself.” As described in a campus publication explaining the site, “the algorithm…works by asking each contributor to ignore his or her own effort and instead assess how much each of the other colleagues contributed to the final product.”

As more and more professors utilize group work in their classes, this website could be of great utility. While I have not used it myself, and while we know many law professors and many law students are mathaverse, it may be worth a look, especially since it doesn’t actually require the professor or the student do actually do or understand higher mathermatics.

“-crastination”, Creativity & the Importance of Downtime

A colleague who was in my Civil Procedure class when I was a baby law professor tells me that what he remembers best from the class is my comment along the lines of:  “When you are stuck  — can’t make sense of what you are reading, struggling with a project — take a break, do something else, work in the garden.  When you come back to your task after clearing your mind, you’ll make better progress.”  (An illustration of Judith Wegner’s recent reflections on teaching, emphasizing sharing what we know??)  I have no memory of making such a comment (and no, it’s not old age kicking in; I couldn’t remember when he told me about it 15 years ago). But I like to think it’s something I would have said.

I was reminded of this story when I read the recent NY Times column “Why I Taught Myself to Procrastinate” by Adam Grant.   A professor of management & psychology, Grant is a self-proclaimed pre-crastinator who habitually used to meet deadlines in advance —  even months in advance for big projects!  Now, however, he’s trying to train himself to, as he terms it, procrastinate. Citing experiments by one of his graduate students showing that people were rated as more creative in coming up with new business ideas when they engaged in an unrelated activity for five minutes before answering the question, Grant  argues that procrastination can be a good thing.

This blog post is testament to the potential value of procrastinating.  When I read the column I was, in fact, procrastinating on my blogging efforts.  Reading a bit aimlessly, casting around for a topic. And voila, thanks to Grant, I found one.

Nonetheless, I happen to think that Grant fails to distinguish between people who are truly procrastinating  and those who simply  operate at a pace that provides downtime for recharging and percolating.  In my book, procrastinators stick their heads in the proverbial sand, put off the task, often feeling guilty or stressed about it, but aren’t necessarily mentally percolating it. For instance, until I became an attorney and my point of view was dictated, I habitually put off writing projects until the deadline loomed.  Unable to “find truth in fifteen pages”  — or worse, engage in creative writing — and not understanding that the point was typically the less daunting one of saying something interesting, I froze until the pressure of the deadline overcame the urge to procrastinate. I suspect that the delay was rarely  generative, as I won’t think hard, unless I write.  And it certainly left no time for the multiple drafts required for quality work. Prescribing procrastination for students like my younger self? Not productive.

With many present day law students, the challenge seems less to be procrastination of the type I struggled with, and more actual lack of time.  So many of our students are simply waaay over-committed.  In the current environment, students seem to feel they must take advantage of every opportunity that presents itself. I suspect that for them, the remedy is learning to say to to over-busyness, incorporating the periodic downtime that a more human pace allows.  And we could do them a big favor by helping them with that process.  Whether we call that procrastination, or not.





Whither Clinical Courses and Bar Passage – by Prof. Robert Kuehn

Bar examination passage rates are down again in many states. Last year’s results led to accusations that exam administration caused the decline, and counteraccusations that schools were at fault for admitting less qualified students than in prior years. Determining the possible cause of this year’s decline is complicated by the addition of a new subject (Civil Procedure) to the Multistate Bar Exam. In response to the declines, some blame an easy scapegoat — too many electives (especially experiential courses) and too few bar-tested courses. While limiting experiential or clinical courses or credits or mandating more bar courses presents an easy way of appearing  to do something,  there is no available evidence that students who take more experiential or clinical courses do worse on  the bar exam, and only a limited, weak positive correlation between bar courses and bar exam success.

Fueling this finger pointing against experiential courses was a comment from the president of the National Conference of Bar Examiner s (NCBE) on factors that could explain the decline in bar passage percentages: “In addition, the rise of experiential learning may have crowded out time for students to take additional ‘black-letter’ courses that would have strengthened their knowledge of the law and their synthesis of what they learned during the first year.”1 She suggested another factor could be that schools are requiring fewer bar courses, “thereby permitting students to miss (or avoid) core subjects that will appear on the bar exam.” A possible connection between clinical courses and declining bar scores was also later raised by the NCBE’s director of testing and research.2

Unfortunately for the debate over the causes of bar exam failure and what schools might do to address the problem, these statements were made without reference to any supporting evidence. Indeed, none exists. In response to my inquiry whether there was any empirical basis for asserting that students with more experiential coursework perform, on average, worse on the bar exam or that taking more bar courses will increase  a student’s chances of success, the NCBE president replied that she was unaware of any research but would check with her testing staff. A follow up six months later confirmed there still was no supporting study to share.

I too am unaware of any published study examining the relationship between experiential or clinical coursework and bar passage. There are a number of studies showing the value of clinical courses in enhancing the practice skills and professional identity of students. But no data on the relationship of coursework to bar success include results for experiential courses. Studies do consistently find that law school grades and LSAT scores have the strongest relationship to bar exam success.3

Regarding a relationship between enrollment in bar courses and bar passage, published studies show no, or a small, positive relationship, but only for a narrow range of students. The earliest study sought to determine whether an Indiana bar admission rule mandating successful completion of courses in 14 subject matter areas was likely to increase the probability of passing the bar examination. Reviewing data from three administrations of the exam, the authors found “[n]o course or group of courses had any consistent relationship to success or failure on the bar exam.”4 They concluded:

The lack of consistent positive and significant relationships between taking or not taking bar- related courses and bar examination pass rates suggests that requiring these courses will not increase the likelihood that law school graduates, at risk of failure, will pass rather than fail the exam.

The most recent study reviewed coursework and bar results for students at St. Louis  University (SLU) and Hofstra University. Five years of bar results for SLU students showed:

No statistically significant relationship between the number of upper division, bar examination subject matter courses taken and bar examination passage for graduates who ranked in the first, second, or fourth quartiles or for graduates who ranked in the bottom 10 percent of their graduating class.5

There was a statistically significant relationship for students in the third quartile but only 4.1% of the difference in bar passage rates for that group could be explained by the number of bar examination su bject-matter courses taken while in law school; 95.9% of the difference in this quartile between those who passed and those who did not was due to other factors. A follow-up study with data provided by Hofstra similarly found no relationship between the number of bar subject-matter courses taken and bar passage for graduates who ranked in the first, second, or fourth quartiles and only a weak relationship for students in the third quartile.6The most likely explanation for these results is that students  in the top half of the class already pass the bar at sufficiently high rates that additional bar courses help very little, if any, and that students in the bottom quartile are so lacking in analytic skills that merely putting them in the audience of yet another lecture class fails to address the cause of, or provide a solution to, their problems.

So, while some authors claim, without empirical support, that bar courses will improve a student odds of passing the exam,7 and while schools continue to advise their students that the key to bar success is enrollment in bar courses, published studies do not support those claims.

But, all is not lost. Statistical analysis of bar performance at a number of schools has found that specially designed academic support and bar passage programs can improve passage rates, especially for students who have not performed well in law school.8 As one statistician told me, “accurately identifying [at]-risk [students] and then ensuring access to targeted, effective programs does make a difference.”

Of course these programs require a much greater commitment of a school’s resource than simply piling more bar courses on at-risk students. Yet, irresponsibly scapegoating experiential courses for bar failure or forcing students to take more upper-class bar courses as a purported solution is, as the authors of the most respected study warned, “overly simplistic” and “will not solve the bar examination failure problem.”9


1. Erica Moser, Presidents Page, THE BAR EXAMINER 4, 6 (Dec. 2014).

2.Mark A. Albanese, The July 201, MBE: Rogue Wave or Storm Surge, THE BAR EXAMINER 35, 46 (June 2015).

3. See, e.g., Michael T. Kane, et al., Pass Rates and Persistence on the New York Bar Examination Including Breakdowns for Racial/Ethnic Groups, THE BAR EXAM- INER 6, 15 & n. 7 (Nov. 2007); Keith A. Kaufman, et al., Passing the Bar Exam: Psychological, Educational, and Demographic Predictors of Success, 57 J. LEGAL EDUC. 205, 214 (2007).

4. 4 Philips Cutright, et al., Course Selection, Student Characteristics and Bar Examination Performance: The Indiana University Law School Experience, 27 J. LEGAL EDUC. 127, 136 (1975).

5. Douglas K. Rush & Hisako Matsuo, Does Law School Curriculum Affect Bar Examination Passage? An Empirical Analysis of Factors Related to Bar Examination Passage Between 2001 and 2006 at a Midwestern Law School, 57 J. LEGAL EDUC. 224, 233 (2007).

6. Id. at 224.

7. See, e.g., “Students should take most bar-tested courses during law school . . . . Although there is a lack of empirical evidence that taking bar courses correlates with bar success.” Denise Riebe, A Bar Review for Law Schools: Getting Students on Board to Pass Their Bar Exams, 45 BRANDEIS L. REV. 269, 308 (2006-07). Ironically, the footnote associated with the recommendation that students take most bar-tested courses contradictorily states: “Although law school professionals routinely advise students to take bar-tested courses, there does not appear to be any statistically verifiable support for the practice.”

8. See, e.g., Scott Johns, Empirical Reflections: A Statistical Examination of Bar Exam Program Interventions, 54 U. LOUIS- VILLE L. REV. (forthcoming 2016) (University of Denver); Mario W. Mainero, We Should Not Rely on Commercial Bar Reviews to Do Our Job: Why Labor- Intensive Comprehensive Bar Examination Preparation Can and Should Be a Part of the La w School Mission , at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2546001; Derek Alphran, et al., Yes We Can Pass the Bar. University of the District of Columbia, David A Clarke School of Law Bar Passage Initiatives and Bar Pass Rates – From the Titanic to the Queen Mary, 14 U.D.C. L. REV. 9 (2011)(U.D.C.); Linda Jellum & Emmeline Paulette Reeves, Cool Data on a Hot Issue: Empirical Evidence that a Law School Bar Support Program Enhances Bar Performance, 5 NEVADA L. REV. 646 (2005) (University of Richmond).

9. Rush & Matsuo, supra at 236. One of the authors of the study explained, “if you want students to pass bar exams, teach more logic, reasoning and test taking skills.” Doug Rush, Comment to Did You Know That “Bar Courses” Don’t Matter?, Best Practices for Legal Educ., July 25, 2008, http://bestpracticeslegaled.albanylawblogs.org/2008/07/25/335/#comment-289.


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